PEOPLE v. RODRIGUEZ

Appellant, Edgar Octavio Barajas, Petition for Review

Cal.January 26, 2017

$2397 14 COPY SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, v. JESUS MANUEL RODRIGUEZ, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, V. EDGAR OCTAVIO BARAJAS, Defendant and Appellant. No. Court of Appeal No. F065807 (Superior Court No. SUPREME COURT 1085319) | E D JAN 26 2017 Jorge Navarrete Clerk _ —*>n Deputy Superior Court No. 1085636 PETITION OF EDGAR OCTAVIO BARAJAS FOR REVIEW After Decision by the Court of Appeal, Fifth Appellate District Filed December20, 2016, on Remand from the Supreme Court S. LYNNE KLEIN Attorney at Law State Bar Number 114527 P.O. Box 367 Davis, CA 95617 Telephone: (530) 753-9401 E-mail: slklaw@live.com Attorney for Appellant Appointed by the Court of Appeal, IndependentBasis M A I E R “A sc iia eth ege l TABLE OF CONTENTS Page PETITION FOR REVIEW uu... cece eecccceseccceccccccccesccececceesnsscecssaauvevecereseesees 6 ISSUES PRESENTED FOR REVIEWQcieeessssccccsersssseessseseeesees 7 REASON FOR GRANTING REVIEW.ouiccc eessssccccceccsecesceessesevees 8 STATEMENT OF CASE AND FACTSwucccssssssccseessnecsccesvevece 11 ARGUMENT0cccceccceecsesscecsseseeesscesseseesssesesensacseessaesassesneseaeeseeeenees 11 I. PETITIONER WAS DENIEDHIS RIGHT TO THE DUE PROCESS OF LAW GUARANTEEDBY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION DUE TO INSUFFICIENT EVIDENCE TO SUPPORT HIS CONVICTIONS PURSUANT TO SECTION 1111 BECAUSE THE ONLY EVIDENCE CONNECTING BARAJAS TO THE CRIMES WAS THE UNCORROBORATED TESTIMONY OF AN ACCOMPLICE AND MERE MEMBERSHIP IN A GANG WHICH COMMITTED THE OFFENSEIS NOT SUFFICIENT EVIDENCE CONNECTING A DEFENDANTTO A CRIME....... 11 A. Romero and Self, Section 1111, and Related Case Law..... 12 B. Non-Accomplice Evidence 00.0... esssssssssesssecsseesseeeesnesseees 15 C. Evidence that Barajas is a Surefio and the Crime Was Committed by Surefios Simply Connects Barajas with the Crime’s Perpetrators, Not the CrimeItself, But Evidence Corroborating an Accomplice Must Connect or Implicate the Defendant with the CrimeItself, Not Simply Its Perpetrators.. 20 . APPELLANT'S CONSTITUTIONAL CHALLENGETO HIS 50 YEARS TO LIFE SENTNECE IS NOT MOOT BECAUSE, UNLIKE PEOPLEV. FRANKLIN, THIS CASE WAS NOT REMANDED TO THE TRIAL COURT TO DETERMINEIF BARAJAS WAS PROVIDED AN ADEQUATE OPPORTUNITY TO MAKE A RECORD OF INFORMATION THAT WILL BE RELEVANT TO THE BOARD OF PAROLE HEARINGSAS ITS FULFILLS ITS STATUTORY OBLIGATIONS UNDER SECTIONS 3051 AND 4801 oo.eeeseeeeeeeeeeeeneeecsseeressaeeseseeseeesseessesaeseeeeneraeens 23 II. PETITIONER WAS DENIED HIS RIGHTS TO PRESENT A DEFENSE AND THE DUE PROCESS OF LAW GUARANTEED UNDERTHE SIXTH AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTION BY THE TRIAL COURT'S DENIAL OF MOTIONS FOR DISMISSAL AND FOR A NEW TRIAL DESPITE THE PROSECUTION’S FAILURE TO PRESERVE EVIDENCE.000... eeceseeesccseesessesseeesssersessseecsssseeceneranensens 28 IV. THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO INSTRUCT THE JURY THAT THE EVIDENCE NEEDED TO SUPPORT THE STATEMENT OR TESTIMONY OF ONE ACCOMPLICE CANNOTBE PROVIDED BY THE STATEMENT OR TESTIMONY OF ANOTHER ACCOMPLICE.......eee 33 V. PETITIONER WAS DENIEDHIS RIGHT TO DUEPROCESS GUARANTEEDBY THE FIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BECAUSE THE TRIAL COURT ERRONEOUSLY FAILED TO INSTRUCT THE JURY THAT CALCRIM NO. 370, WHICH STATES THAT PROOF OF “MOTIVE”IS NOT REQUIRED, DID NOT APPLY TO THE GANG ENHANCEMENTSALLEGED.... 35 VI. THE COURT OF APPEAL ERRED IN IGNORING RODRIGUEZ’S INVESTIGATOR’S DECLARATION FILED IN SUPPORT OF PETITIONER’S MOTION FOR A NEW TRIAL AND THE MOTION WAS IMPROPERLY DENIED BY THE TRIAL COURT, THEREBY DENYING PETITIONERHIS RIGHTS TO A FAIR TRIAL, IMPARTIAL JURY, AND DUE PROCESS GUARANTEED BY THEFIFTH, SIXTH, AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTION; THE DECLARATION SHOWS THAT SEVERAL JURORS COMMITTED MISCONDUCT AND CAUSED OTHER JURORS TO COMMIT MISCONDUCTDURING DELIBERATIONS ON A CRITICAL ISSUED.cecccceteceeceseecseeressecassessessesseessesenssserenseeseeenes 37 CONCLUSIONocecececceeecrsneeeetcesesseseeeesssesesnesscseseceeceeeseeeseaessesensenessees 39 CERTIFICATE OF LENGTH...eeececceccesesrsesesssscessecsssecsessseneeseenseaees 40 Cases TABLE OF AUTHORITIES Arizona v. Youngblood (1988) 488 U.S. 51 Burks v. U.S. (1978) 437 U.S. 1 California v. Trombetta (1984) 467 U.S. 479 Chapman v. California (1967) 386 U.S. 18 People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. People v. Peoplev. Peoplev. People v. People v. Abilez (2007) 41 Cal.4th 472 Ames (1887) 39 Cal. 403 Barillas (1996) 49 Cal.App.4th 1012, 1021 Blackwell (1967) 257 Cal. App. 2d 313, 320-32 Carter (2005) 36 Cal.4th 1215 Chavez (1985) 39 Cal.3d 823, Comstock (1956) 147 Cal. App. 2d 287, 298 Danks (2004) 32 Cal.4th 269 Davis (2005) 36 Cal.4th 510 Falconer (1988) 201 Cal.App.3d 1540 Farnam (2002) 28 Cal.4h 107 Frye (1998) 18 Cal.4th 894 Fuentes (2009) 171 Cal.App.4th 1133 Medina (1990) 51 Cal.3d 870 Nesler (1997) 16 Cal.4th 561 Oliver (1987) 196 Cal.App.3d 423 Perry (1972) 7 Cal.3d 756 Robinson (1964) 61 Cal.2d 373 Rodrigues (1994) 8 Cal.4th 1060, 4 29 23 29 32 12, 13, 14 20, 21 19 19 28 33 19 38 14 9, 12, 20 32 34 35 29 38 38 12 9,12, 20 12 People v. Roybal (1998) 19 Cal.4th 481 People v. Samaniego (2009) 172 Cal.App.4th 1148 People v. Szeto (1981) 29 Cal.3d 20 People v. Trujillo (1948) 32 Cal.2d 1015 People v. Washington (1969) 71 Cal.2d 1061, 1093; People v. Williams (1988) 44 Cal.3d 1127 People v. Zapien (1993) 4 Cal.4th 929 Statutes Evid. Code, sec. 1250 Pen. Code, sec. 186.22 Pen. Code, sec. 1111 Pen. Code, sec. 1181 Pen. Code, sec. 1259 Rules Cal. Rules of Court, rule 8.200(a)(5) Cal. Rules of Court, rule 8.500 29 10, 21, 22 12, 22 14 19 38 34 38 35, 36 12 38 33 35 SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, Vv. JESUS MANUEL RODRIGUEZ, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, No. Court of Appeal No. F065807 (Superior Court No. 1085319) Superior Court No. 1085636 V. EDGAR OCTAVIO BARAJAS, Defendant and Appellant. PETITION FOR REVIEW TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATEJUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA: Petitioner and defendant EDGAR OCTAVIO BARAJAS petitions this Court for review following the unpublished decision of the Court of Appeal, Fifth Appellate District on remand from this Court, filed in that court on December 20, 2016, which affirmed the judgment. A copyof the opinion of the Court of Appeal (People v. Rodriguez and People v. Barajas, Case No. F065807), is attached hereto as Appendix "A." ISSUES PRESENTED FOR REVIEW 1. For purposes of Penal Code section 1111 and the due process of law guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, in the absence of any evidence corroborating accomplice testimony tending to connect the defendant personally with an offense, does evidencethat a defendant is a memberof a criminal street gang and that the offense was committed by members of the same criminalstreet gang providesufficient corroboration of accomplice testimony and therefore provide sufficient evidence to convict the defendant? 2. Is a defendant's constitutional challenge to his 50 years to life sentence moot when, unlike People v. Franklin, his case was not remandedto thetrial court to determine if he was provided an adequate opportunity to make a record of information that will be relevant to the Board of Parole Hearingsasit fulfills its statutory obligations under Penal Codesections 3051 and 4801? 3. Is a criminal defendant denied his rights to present a defense and the due process of law guaranteed underthe Sixth and Fourteenth amendments of the United States Constitution by the trial court’s denial of Trombetta-Youngblood motions for dismissal 1 Petitioner and defendant received twocopiesof the December20, 2016 Opinion. A copy from the Court of Appeal’s website does not contain signatures, and the paper copy mailed by the Court of Appeal does not contain the opinion’s date. Therefore, to includethe date and signature, Exhibit A contains the website's opinion and page 26 of the paper copy. 7 and for a newtrial despite the prosecution’s failure to preserve evidence? 4, When evidence is presented by more than one accomplice, doesa trial court err in failing to instruct the jury that the evidence needed to support the statementor testimony of one accomplice cannot be provided by the statementor testimony of another accomplice? 5. Is acriminal defendant charged with murder, which does not require proof of motive, and a gang enhancement, which does require proof of motive, denied his right to due process guaranteed by the Fifth and Fourteenth Amendments to the United States Constitutionif the trial court fails to instruct the jury that CALCRIM No. 370, which states that proof of “motive” is not required, does not apply to the gang enhancements? 6. Is a criminal defendant denied his rightsto a fairtrial, impartial jury, and due process guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution when his motion for a new trial on the groundof juror misconductis denied, without any hearing to establish whether there had been misconduct, simply because the misconduct was supported only by hearsay contained in a declaration? REASON FOR GRANTING REVIEW A grantof review and resolution of these issues by this Court is necessary to settle important questions of law within the meaning of rule 8.500 of the California Rules of Court. As discussed in the 8 Argumentbelow,the first two issues are directly related to this Court's August 17, 2016 order in Case Number $225231 transferring this case to the Court of Appeal with directions to vacate its decision and reconsider Barajas’s case in light of People v. Romero and Self (2015) 62 Cal.4th 1 (Romero and Self) and People v. Franklin (2016) 63 Cal.4th 261 (Franklin). Review of the first issue will address whether membership in a gang, byitself, is sufficient evidence to corroborate the testimony of an accomplice for purposes of Penal Codesection 1111.2 As discussed below in section I of the Argument, there was not any independentevidencecorroborating the testimony of the accomplice Mario Garcia which tended to connect petitioner to the crime. The Opinion appears to conclude that non-accomplice testimony that the words “puro Sur” and a gang hand signal were used during the crime combined with expert testimony connecting the Surefios with the crimes and concluding that Barajas was a Surefio gang memberat the time of the shooting wassufficientto connect Barajas to the crimes. (Opinion,at pp. 13, 15.) However, connecting Barajas with the Surefios does no more than connect Barajas with the perpetrators. This is not sufficient corroboration. (People v. Robinson (1964) 61 Cal.2d 373, 399; People v. Falconer (1988) 201 Cal.App.3d 1540, 1542.) 2 Unless otherwise indicated, all subsequent statutory references are to the Penal Code. 9 Cases have recognized that “[g]ang membership can be a significantfactor in corroborating an accomplice’s testimony.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1178; emphasis added.) However, no case has held a defendant’s membershipin a gang, without more, providessufficient independent evidence tending to connect the defendantto a crime committed by fellow gang members. The cases haveall involved some independent evidence connecting the defendant to the crimeitself in addition to evidence of gang membership. Moreover, evidence of mere gang membership should not be held sufficient accomplice corroboration for purposesof section 1111. Otherwise, section 1111 would be rendered meaningless whenever an offense is committed by membersof a criminalstreet gang. If the Legislature wanted to create such an exceptionto section 1111, it would have doneso. Also, mere gang membership does not always establish a strong motive. In this case, for example, there was no evidence of a strong retaliation motive to benefit the gang or Barajas personally, that either Barajas or his property was the victim of a Nortefio attack, or that the Nortefios had killed a fellow Surefio in the neighborhood wherethe shooting occurred. Review of the second issue will resolve whether remand to a trial court is needed to make a defendant's challenge to a life sentence moot under sections 3051 and 4801 whenthecaseis not remandedto the trial court for a determination of whether the 10 defendant had an adequate opportunity to make a record for purposes of future hearings under sections 3051 and 4801. The remaining issues involve federal constitutional rights to a defense, impartial jury, and the due process of law guaranteed underthe Sixth and Fourteenth Amendments to the United States Constitution. STATEMENT OF CASE AND FACTS For a general summary ofthe case and facts, please see the summary set forth on pages 1 through7 in the Court of Appeal opinion contained in Appendix "A." ARGUMENT I. PETITIONER WAS DENIED HIS RIGHT TO THE DUE PROCESS OF LAW GUARANTEEDBY THE FIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION DUE TO INSUFFICIENT EVIDENCE TO SUPPORT HIS CONVICTIONS PURSUANTTO SECTION1111 BECAUSE THE ONLY EVIDENCE CONNECTING BARAJAS TO THE CRIMES WAS THE UNCORROBORATED TESTIMONY OF AN ACCOMPLICE AND MERE MEMBERSHIP IN A GANG WHICH COMMITTED THE OFFENSEIS NOT SUFFICIENT EVIDENCE CONNECTING A DEFENDANT TO A CRIME. The Court of Appeal rejected petitioner’s claim that his convictions must be reversed because the only evidence connecting him to the crimes wasthe testimony of an accomplice. (Opinion 11- 16.) Petitioner respectfully disagrees; he presented his arguments in a petition for a rehearing which was denied by the Court of Appeal. 1] A. Romero and Self, Section 1111, and Related Case Law A conviction cannot be had uponthe testimonyof an accomplice unless it is corroborated by such other evidence that tends to connect the defendant with the commission of the offense. (Pen. Code, sec. 1111; People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.) The corroborationis not sufficient if it merely shows the commission of the offense or the circumstances thereof. (Sec. 1111.) It must connect the defendant with the crime, not simply the perpetrators. (People v.Robinson (1964) 61 Cal.2d 373, 399.) Also, corroborative evidenceis insufficient where it merely casts a suspicion upon the accusedorraises a conjecture of guilt. (People v. Szeto (1981) 29 Cal.3d 20, 27.) The trier of facts’ determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence does not reasonably tend to connect the defendant with the commission of the crime or should not have been admitted. (People v. Abilez (2007) 41 Cal.4th 472, 505.) _ Romero andSelfre-confirmedthat to sufficiently corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistancefrom the testimony of the accomplice, tends to connect the defendant with the crime charged. (Romero and Self, at p. 32.) While the evidence may be circumstantial or slight, there must be some evidence that tends to connect the defendant with the crime.(Ibid.) The corroborating evidence need not independently establish the identity of the victim’s assailant, but it must tend to connect the defendant with the 12 crime. (Ibid.) However, an accomplice's testimony is not corroborated by the circumstance that the accomplice’s testimonyis consistent with the victim's description of the crime or physical evidence from the crimescene. “Such consistency and knowledge of the details of the crime simply proves the accomplice wasat the crime scene, something the accomplice by definition admits.” But “under section 1111, the corroboration must connect the defendant to the crime independent of the accomplice's testimony.”(Ibid.) While non-accomplice evidence tends to connect the Surefios to the crimes, the non-accomplice evidence does not tend to connect Barajas to the crimes independentof the testimony of the accomplice Mario. The Opinion quotes the following statement made in Romero and Self. The corroborating evidence “need not independently establish the identity of the victim’s assailant.” (Opinion 16, quoting Romero andSelf, supra, at p. 32.) It also cites Romero and Self in support of the statementthat the corroborating evidence “maybe circumstantialor slight.” (Ibid.) Romero and Selfdoes not explain the meaningof either statement, butit cites People v. Abilez (2007) 41 Cal.4th 472, at pages 505 and 506 in supportof the statements. (Romero and Self, supra, at pp. 505, 506.) People v. Abilez sheds light on the meaning of both statements. In Abilez, one non-accomplice witnesstestified that on the evening of March 15, 1996, the evening of the victim’s murder, the defendant and one other person cameto see the victim, and the witness heard the defendant and the victim arguing, the victim scream, and 13 someonestart the victim’s car and drive off. Also, two non- accomplice witnessestestified that in the days before the murder, they heard the defendantstate he wishedto kill the victim. (People v. Abilez, supra, 41 Cal4th at pp. 483, 505-506.) Thus, there was independentcircumstantial evidence connecting the defendantto the crime. This Court held that the evidence in Abilez corroborated the accomplice’s testimony on the issue of thekiller’s identity. It stated that the evidence tended “to provedirectly or circumstantially, that defendant was the person who sodomized and killed the victim.”It also stated that “the corroborating evidence need not independently establish the identity of the victim’s assailant.” (Id. at pp. 483, 505- 906.) It explained, however, that the corroborating evidence “’may be circumstantial or slight and entitled to little weight when standing alone, and it must tendto implicate the defendant by relating to an act that is an elementofthe crime.’” (Id. at p. 505; emphasis added.) Thus, although the corroborating evidence need not independently establish the identity of the perpetrator, it must implicate the defendant. Other cases cited in Romero and Self, which found sufficient corroborating evidence, pointed to non-accomplice evidence that tended to connect the defendant with the commission of the crime. (See e.g., People v. Davis (2005) 36 Cal.4th 510, 541-547 [tape of recorded conversation where defendant implicated himself in the crimes]; People v. Trujillo (1948) 32 Cal.2d 1015, 111 [bullet which killed the victim could have comefrom the gun which the defendant 14 admitted to have prior to the crime and which wastaken from his room, a scarf found at the scene of the crime was identified as having been on the trunk in the defendant's room,a fiber matching test tended to prove the defendant's clothing had comein contact with pieces of apparel from the victim’s body, and a screw driver found near the victim’s body wasthe one used by the defendant and another person whenthey burglarized a club].) There is not any circumstantial evidence connecting Barajas to the shooting similar to that presented in Abilez or any other cases cited in Romero and Self. B. Non-Accomplice Evidence Appellant does not dispute that there was evidence corroborating the events and circumstances of the crime described by the accomplice Mario. However, an accomplice’s testimony“is not corroborated by evidence that ‘merely shows the commission of eur the offense or the circumstances thereof.’” (Romero and Self, supra, at p. 36.) To be sufficient, the evidence must tend to connect Barajas with the crime.(Id. at p. 32.) The Opinion observes Nadia’s non-accomplice testimony corroborated that the Blazer actually stopped, the shooter wasin the back of the Chevy Blazer, one of the people in the Chevy Blazer had a dark bandanaoverhis face, and oneof the occupants of the Blazer was throwing “’13’”gang signs. Nadia also testified that she heard Tina scream and someoneyell “’They shot Tina, they shot Tina.’” (Opinion 4, 12, 14, 15.) These facts only corroborate the accomplice’s testimony with respect to details about the commission 15 of the offense andits circumstances thereof. However, none of these facts tend to connect Barajas to the crimes. The sameis true with Lopez’s testimony that she heard the victim scream and Lopez’s and Nadia’s testimony that the windows were broken outof the Blazer, they heard multiple gunshots coming from the Blazer, and that the words “Puro Sur” were shouted from the Blazer. (Opinion 4, 12, 14.) These facts only corroborate the details of the crimes. They do not connectBarajas to the crimes. While the words “Puro Sur” andthe use of a gang sign might suggest that the crimes were committed by Surefios, they do not. connect Barajas to the crimes. The Opinion appearsto concludethat non-accomplice evidence that Barajas was a Surefio wassufficient to connect Barajas to the crimes. (Opinion 15.) As discussed under Section C. below,this is not so. Also, the opinion points to Charlene’s testimony that she heard Tina yell, heard shouting from the Chevy Blazer, noticed one passenger with a dark bandanaoverhis face, saw a black object (a gun) beinglifted up through a broken window of the ChevyBlazer, and heard multiple gunshots coming from the ChevyBlazer. (Opinion 4, 12) These facts likewise fail to connect Barajas to the crimes and only corroborate the details of the crime. In addition, the opinion refers to Deputy Hoopertestifying that he received information that people at 429 Thrasher, directly across the street from the park, were involved in the shooting, Louis A., a Surefio, lived at this address, and at a subsequent search, two .22-caliber bullets were foundat the residence. (Opinion 5, 13.) 16 While this evidence connected Louis A. and the Surefios to the shooting, it did not connect Barajas to the crimes. The Opinionalso refers to the following firearm andballistics evidence: (1) Deputy Hooper’s testimonythat three .22 caliber shell casings were recovered from near where the Chevy Blazer wasleft after the shooting; (2) evidence that Rodriquez led Deputy Campbell to the rifle and an additional .22-caliber casings and .22 caliber bullets; (3) Criminalist Lovass’s testimony that the three shell casings found nearthe Blazer werefired from therifle; (4) evidence a .22 caliber bullet was removedfrom the victim’s body; and (4) Lovass’s testimony that the bullet recovered from the victim’s body could have comefrom thetested rifle. (Opinion 5, 6, 13-15.) The Opinion concludes that this evidence helps to connect Barajas to the crime. (Opinion 15.) This evidence, however, does not satisfy the corroboration standard of tending to connect Barajas with crimes without aid or assistancefrom the testimonyofthe accomplice. (Romero and Self, at p. 32.) Without considering the testimony of the accomplice Mario, the firearm and ballistics evidence does not tend to connect Barajas to the crimes. Romero and Self discusses how firearm evidence may corroborate an accomplice’s testimony about a shooting by tending to connect a defendantto crimes. With respect to crimes against Kenneth Mills and Ewy, the accomplice Munoz’s testimony was corroborated by a 20-gauge shotgun wadding found in Ewy’s car and Self admitting that he had possessed a 20-gauge shotgunat the 17 time of the shooting, and Mills identifying Self as a person holding a shotgun during a robbery. (Romero and Self, supra, at pp. 33-34.) Unlike in Romero and Self, there was not any non-accomplice evidence that Barajas possessed a .22 at the time of the crime or any evidence connecting Barajas, as opposedto a fellow gang member, to .22 caliber bullets. (Opinion,at p. 15.)3 In contrast, Self admitted to purchasing 20-gauge shells. (Romero and Self, at p. 34.) The Opinionalso refers to evidence presented about the ChevyBlazer being involved in the shooting as tending to connect Barajas to the shooting. (Opinion, at p. 15.) However, there is not any non-accomplice evidence connecting Barajas, as opposed to Rodriquez (Opinion,at p. 3), to the Chevy Blazer. Romero and Self also found Munoz's testimony was further corroborated by the circumstance that about a month later, on November30, 1992, he and Self attacked and robbed Feltenbergerin a mannersimilar to that of the attack on Kenneth Mills and Ewy.In both the attack on Kenneth Mills and Ewyand the attack on Feltenberger, the victims were driving in isolated areaslate at night when a car suddenly appeared and drove beside them before the shotgunattack. Feltenberger identified Self as the person who shot _ him with a shotgun, and Self himself admitted to police he was with Munoz that night and woundedFeltenberger with his 20-gauge shotgun. (Romero and Self, supra, at pp. 34-35.) 3 Barajas’s admissions about the crimes were inadmissible evidence that could not be considered because of a Miranda error. (4RT 713-715; 2CT 284.) Also, references to those statements were stricken from the record. (2CT 300, 340; 4RT 1131-1132.) 18 Unlike in Romero and Selfand cases cited therein, although corroboration has been found by proof that a defendant committed otherrecent, similar offenses, there was no evidence presented that Barajas committed any otherrecent, similar shooting. (Romero and Self, supra, at pp. 34-35; People v. Washington (1969) 71 Cal.2d 1061, 1093; People v. Barillas (1996) 49 Cal.App.4th 1012, 1021; People v. Blackwell (1967) 257 Cal. App. 2d 313, 320-321; People v. Comstock (1956) 147 Cal. App. 2d 287, 298.) Although Romero and Selffound that Munoz’s testimony was corroborated as to the crimes against Kenneth Mills and Vicky Ewy (Romero andSelf, supra, at p. 35), it reached a different result in regard to the robbery of Knoefler. With respect to the robbery of Knoefler, this Court agreed with Self’s argument that no evidence corroborated Munoz’s testimonythat Self was evenin the caror otherwise presentat the scene.(Id., at pp. 34-37.) The Court explained that although a shotgun was usedin the robbery, and Self admitted that he had possessed a shotgun for about a month before he shot Feltenberger on November30, 1992, there was no dispute Romero, not Self, was holding the shotgun when Knoefler was robbed. Thus, the circumstance of Self possessing a shotgun did not corroborate Munoz's testimony that Self was presentat the robbery.(Id. at pp. 35-36.) This Court rejected the argumentthat the accomplice Munoz’s testimony was largely corroborated by Knoefler’s testimony aboutthe details of the crime because Knoefler’s 19 testimony did not connect Self with the crime independentof the testimony of the accomplice Munoz.(Id. at p. 36.) C. Evidence that Barajas is a Surefio and the Crime Was Committed by Surefios Simply Connects Barajas with the Crime’s Perpetrators, Not the CrimeItself, But Evidence Corroborating an Accomplice Must Connect or Implicate the Defendant with the CrimeItself, Not Simply Its Perpetrators Evidence independentof the testimony of the accomplice must tend to connect or implicate a defendant with the crimeitself, and not simply with its perpetrators. (AOB 55; People v. Robinson (1964) 61 Cal.2d 373, 399; People v. Falconer (1988) 201 Cal.App.3d 1540, 1542; People v. Reingold (1948) 87 Cal.App.2d 382, 399-400.) The Opinion appears to conclude that non-accomplice testimony that the words “puro Sur” and a gang handsignal were used during the crime along with expert opinion testimony connecting the Surefios with the crimes, concluding Barajas was a Surefio gang memberat the time of the shooting, and concluding the shooting would havebenefited the gang wassufficient to connect Barajas to the crimes. (Opinion 13, 15.) However, connecting Barajas with the Surefios does no more than connect Barajas with the perpetrators. This is not sufficient corroboration. (People v. Robinson, supra, at p. 399.) Stated otherwise, the evidence only connects the Surefio gang to the crimes. It does not tend to connect every Surefio memberor associate to the crime. To do so, raises the same concerns expressed by this Court in People v. Ames (1887) 39 Cal. 403 wherethis Court held that evidence corroborating statements made during an 20 offense, which did not specifically tend to connect the defendant with the offense, was insufficient corroborating evidence. . Ames explained that to be sufficient, corroborating evidence “must tend, in someslight degree at least, to implicate the defendant.” (Ames, supra, at pp. 404-405.) In discussing the corroborating evidence, Ames explained that “the fact that one of the robbers was addressed as ‘Charley,’ and again as ‘Number Three,’ and that they designated each other by numbers, no moretends, of itself, to connect the defendant with the crime than it would to raise a suspicion against anyoneelse.’”(Id. at p. 405.) This Court has recognized that a 1911 amendmentto section 1111 did not change the meaningof the statute as it was interpreted in Ames. (Romero andSelf, supra, at pp. 36-37.) While there was non-accomplice evidence tending to connect other Surefio members with the crimes, no such evidence was presented with respect to Barajas. “Gang membership can bea significantfactor in corroborating an accomplice’s testimony.” (People v. Samaniego (2009) 172 Cal.App.4th 1148; emphasis added.) However, case law finding the corroboration of accomplice testimony in gang cases did notrely simply on non-accomplice evidence that membersof a gang committed a crime and that the defendant was a memberof that gang which had a motive to attack a rival gang member. There was other evidence tending to connect the defendants with the crimes. (People v. Samaniego, supra, at p. 1178 [slight corroboration, by a non- accomplice witness, placing defendantat the crime scene, showing 21 that defendantfrequently associated with the other two defendants, and showingthat less than three months before the shooting defendant worked together with the two other defendants and a fourth person in shooting another victim]; People v. Vu (2006) 143 Cal.App.4th 1009, 1013-1014, 1016-1017; 1022-1023 [independent evidence sufficiently corroborated the accomplice testimony and connected defendantto the crime by establishing the motive of revengefor the killing of Ly who was defendant's closest friend, establishing opportunity by placing defendant with the conspirators on the night of the murder, and by discrediting defendant'salibi given during a police interview]; People v. Szeto (1981) 29 Cal.3d 20, 26, 28-29 [defendant wasconvicted of aiding killers by disposing of their weaponsincluding a sawed-off shotgun and independent non- accomplice evidence placed the defendantat the location where the weaponswerelocated after the killing and showed the weapons disappeared the same day defendant wasat the location and there was evidence of the defendant's motive of revengefor the killing of a person whose funeral the defendant attended].) Unlike in Samaniego, there was not evenslight corroboration placing Barajas at the scene of the shooting, showingthat Barajas frequently associated with any of the accomplices involved in the shooting, or showingthat Barajas along with the accomplices were involved in a previous shooting. In fact, there was no evidence that Barajas had been involvedin any crime. (2 CT 563 [probation reported that Barajas’s criminal history was “None”].) 22 CO I D R E R I O E Y , P A G S In contrast to Vu, here there was no independent evidence demonstrating that Barajas had a motive tokill the victim, evidence showing opportunity by placing him with the perpetrators on the night of the homicide, or evidence that Barajas gavea false alibi. Also, there was not strong evidence of motiveto kill in revengeas there was in Szeto. There was no evidencethat a Nortefio killed any of the Surefios in an area where the shooting occurred or that Barajas wentto a slain person’sfuneral. The double jeopardy clause of the United States Constitution precludesretrial of a defendantafter an appellate court has reversed the conviction because the evidence introducedat trial was insufficient to sustain a verdict. (Burks v. Unites States (1978) 437 US.1,11.) Thus, petitioner’s conviction should be reversed. II. APPELLANT’S CONSTITUTIONAL CHALLENGETO HIS 50 YEARS TO LIFE SENTNECE IS NOT MOOT BECAUSE, UNLIKE PEOPLE V. FRANKLIN, THIS CASE WAS NOT REMANDEDTO THE TRIAL COURT TO DETERMINEIF BARAJAS WAS PROVIDED AN ADEQUATE OPPORTUNITY TO MAKE A RECORD OF INFORMATION THATWILL BE RELEVANT TO THE BOARD OF PAROLE HEARINGSAS IT FULFILLS ITS STATUTORY OBLIGATIONS UNDER SECTIONS3051 AND 4801 Appellant agrees that, pursuant to Franklin, his constitutional challengeto his 50 yearsto life sentence would be mootby sections 3051 and 4801 if his case were remandedtothetrial court for a determination of whether he was provided an adequate opportunity to makea record of information relevant to a future parole hearing undersections 3051 and 4801 as was donein Franklin. (Franklin, 23 supra, 63 Cal.4th at pp. 286-287.) However, the Court found the matter moot without ordering such a remand. (Opinion 24-26.) The Opinion concluded: “Information from the probation reports prepared for both defendants, the juvenile fitness hearing reports, their pretrial statements to officers, as well as what was providedat the sentencing hearings, wouldall be available for consideration at the youth offender parole hearing.” It also Mfconcludedthat it appears that Barajas had “‘sufficient opportunity to put on the record the kinds ofinformation’” deemed relevant to a youth offender parole hearing, although they are not precluded by submitting additional information for review by the parole board. (Opinion 25- 26.) Appellant respectfully disagrees; he presented his arguments in a petition for a rehearing which was denied by the Court of Appeal. Appellant was sentenced on September4, 2012. CT 777, 783.) After he was sentenced, Senate Bill No. 260, which added section 3051, effectively reformed Barajas’s statutorily mandated sentence so that he will becomeeligible for parole, at a hearing that must give great weight to youth-related mitigating factors, during his 25th year of incarceration. (Franklin, supra, at pp. 285-286.) Therefore, neither the probation officer nor Barajas had any reason to present the types of youth-related mitigating evidence referenced in section 3051 and 4081. And such evidence wasnot presented. In explaining the reason for remand,even though the defendantdid not need to be resentenced, Franklin explained that in directing the Board to “give great weight to the diminished culpability of juveniles as comparedto adults, the hallmark features 24 of youth, and any subsequent growth and increased maturity of the prisoner,”the statutes also contemplate that information regarding the juvenile offender's characteristics and circumstancesat the time of the offense will be available at a youth offender parole hearing to facilitate the Board's consideration. For example, section 3051, subdivision (f)(2) “aeprovides that “’[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge aboutthe individual before the crime ... may asubmit statements for review by the board.” (Franklin, supra, at p. 283.) The Court further explained that “[a]ssembling such statements ‘about the individual before the crime’is typically a task more easily done at or nearthe time of the juvenile's offense rather than decades later when memories have faded, records may have been lost or destroyed, orfamily or community members may have relocated or passed away.(Id. at pp. 283- 284.) In addition, this Court observed that section 3051, subdivision (f)(1) provides that “any ‘psychological evaluations and risk assessmentinstruments’ used by the Board in assessing growth and maturity ‘shall take into consideration ... any subsequent growth and increased maturity of the individual’and that “stconsideration of “’subsequent growth and increased maturity’ implies the availability of information aboutthe offender when he was a juvenile.” (Id at p. 284.) Franklin concluded that it was notclear whether the defendant “had sufficient opportunity to put on the record the kindsof information that sections 3051 and 4801 deem relevant at a youth 25 offender parole hearing.” Although this Court concluded that Franklin did not need to be resentenced, it remanded the matter “to the trial courtfor a determination ofwhether Franklin was afforded sufficient opportunity to make a recordofinformation relevantto his eventual youth offender parole hearing. “ (Id. at p. 284, emphasis added.) The Court of Appeal concluded that it appeared that Barajas had “‘sufficient opportunity to put on the record the kinds of information’” deemed relevant to a youth offender parole hearing after referencing the probation reports prepared for both defendants, the juvenile fitness hearing reports, their pretrial statementsto officers, as well as what was provided at the sentencing hearings. (Opinion 24-25.) As noted above, section 3051 and subdivision (c) of section 4801 were addedafter appellant was sentenced. Barajas’s probation report contains manydetails about the offense, including Barajas’s interview with law enforcement. (2CT 550-563.) It describesa . statement Barajas madeto the probation officer. (2CT 563-564.) It also contains approximately one-pageof social history information concerning Barajas. (2CT 566-567.) However, it does not contain information with respect to the diminished capacity of juveniles, the hallmark features of youth, or statements from family members, friends, school personnel, faith leaders, or representatives from community-based organizations about Barajas’s characteristics and circumstances before the crime. (2CT 549-569.) As noted by the Courtin Franklin, assembling such statements “aboutthe individual before the crime”is typically a task more easily done at or near the time of the juvenile's offense rather than decades later when 26 memories have faded, records may have beenlost or destroyed, or family or community members mayhaverelocated or passed away. (People v. Franklin, supra, at pp. 283-284.) Also, as recognized in Franklin, section 3051, subdivision (f)(1) provides that any “psychological evaluations and risk assessment instruments” used by the Board in assessing growth and maturity “shall take into consideration ... any subsequent growth and increased maturity of the individual.” Consideration of “subsequent growth andincreased maturity” implies the availability of information about the offender when he was a juvenile. (People v. Franklin, supra, at pp. 283-284.) However, the probation report states that there was no medical or psychological information available as to Barajas. (2 CT 566.) Barajas’s juvenile fitness hearing report is not contained in the record on appeal. However, his probation report prepared in May 2011 states that the information includedin the report for the defendant's statement and social history was extracted from the Fitness Hearing report prepared for the October 12, 2004 court date. (2CT 563.) Thus, from the statementin the probation report that no information is available regarding the defendant's medical and psychological history, one can conclude that such information was not included in the Fitness Hearing report. (2CT 566.) The defensedid notfile a sentencing brief. And, at sentencing, no information wasprovided with respect to the diminished capacity of juveniles, the hallmark features of youth, statements from family members, friends, school personnel, faith leaders, or 27 representatives from community-based organizations about Barajas’s characteristics and circumstances before the crime. Also, there were not any psychological evaluations or risk assessments concerning Barajas presented. (5 RT 1249-1253.) But since section 3051 and the reference thereto in section 4801 were not enacted until after Barajas was sentenced, there was not any reasonfor Barajas to present this evidenceat the time he was sentenced. Thus, it does not appearthat Barajas had a sufficient opportunity to put on the record the kinds of information relevant to a youth offender parole hearing. Without this opportunity as afforded in Franklin, appellant submits that his constitutional challenge to his 50 yearsto life sentence is not made moot by the enactmentof section 3051 and the amendmentto section 4801 referencing section 3051. Ill. PETITIONER WAS DENIEDHIS RIGHTS TO PRESENT A DEFENSE AND THE DUE PROCESS OF LAW GUARANTEED UNDER THE SIXTH AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTIONBY THE TRIAL COURT’S DENIAL OF MOTIONSFOR DISMISSAL AND FOR A NEW TRIALDESPITE THE PROSECUTION’S FAILURE TO PRESERVE EVIDENCE. The Court of Appealrejected petitioner’s argumentthat the trial court erred and infringed on his constitutional rights whenit denied his motion for dismissal and motion for newtrial based on the claim the prosecution failed to preserve evidence of the Chevy Blazer involvedin the drive-by shooting. (Opinion 8-11.) Petitioner respectfully disagrees. 28 On review, an appellate court must determine whether, viewing the evidencein the light most favorable to the superior court's findings, there wassubstantial evidence to support its ruling. (People v. Carter (2005) 36 Cal.4th 1215, 1246.) If evidence has an exculpatory value that is apparent before the evidence is destroyed, then the state has a duty to preserve it and the loss or destruction of the evidence infringes on a defendant's dueprocessright evenif the police acted in good faith. However,if the evidence is merely potentially useful to the defense, the state’s responsibility is more limited, and in such a case, to show a denial of due process, bad faith must be shown. (People v. Roybal (1998) 19 Cal.4th 481, 509-510; California v. Trombetta (1984) 467 US. 479, 488-489; Arizona v. Youngblood (1988) 488 U.S.51, 57-58.) If the defendant establishes bad faith or the loss of significant exculpatory evidence, the trial court has discretion to impose sanctions.(People v. Medina (1990) 51 Cal.3d 870, 894.) The prosecution maintained the theory that Barajas was the only person whofired a gun. (2ART (2"4) 206, 210-213.) However, the police were told in May 2004 that gunshots were heard coming from the park, and the police never followed up onthat information. (2ART (254) 218; 3RT 702-703.) The autopsy of the victim revealed the fatal wound wason herright side, which witnesses said was the side of the victim’s body facing the basketball court inside the park before the shooting occurred. (2RT 432.) Also, a criminalist discovered two dents outside the Blazer not observed by others. (2RT 319, 419; 3RT 697-698.) 29 Defense counsel argued that the bullet that killed the victim did not come from the street where the car waslocated, but from the park, andthe shots fired werein self-defense. (2ART (2"4) 218, 226- 229.) However, the ability of the defense to convince the jury that someonefrom the park fired upon the Blazer was hampered by the police’s failure to preserve the Blazeritself as evidence. Law enforcementsearched the Blazer for evidence, did not observe any evidence, impoundedthecar, and arrangedforit to be towedto the Sheriff’s Office’s secure parkinglot. (ART 70, 287, 289- 290; 2RT 291, 294-295, 303-310, 316, 319, 399-400-401, 403, 415, 419- 420, 421; 3RT 481, 492, 696-698, 702.) The defense team, however, wasnotinvited to look at the Blazer. (2RT 404-405.) In July 2004, the Sheriff's Department decided to remove several vehicles from thelot, including the Blazer. (IRT 1; 2RT 312 315.) The department's policy was to notify the owner when finished with a vehicle, and since Rodriquez wasin custody,his family wasnotified. But defense counsel was notnotified that the vehicle had been released. This was because the prosecutor on the case at that time told law enforcementthat as long as there was no more evidencein the vehicle, it was okay to releaseit. (2RT 215, 315.) The vehicle was subsequently sold and crushed in August or September 2004. (4RT 991-992, 994, 999.) Althoughtrial counsel asked to examine the Blazer in 2008 (1RT 64-65), it was not until 2011 that the defense wastold that the vehicle had been destroyed. (1RT 64, 70-71.) The defensefiled a motion to dismiss contending Nortenosfired at the Blazer and 30 bullet holes in the Blazer could prove so. (1CT 246, 247.) It was orally argued that the prosecution’s conclusion that an examination of the Blazer had negative results was the People’s opinion only. This did not mean that defense would reach the same conclusion. (1RT 67, 69.) Counsel also argued law enforcementwastold in May 2004 that there had been gunfire coming from the park at the time of the shooting. (IRT 75-76.) Since the trial court could not find law enforcementacted in bad faith, it decided that dismissal was not warranted. (1RT 78-79.) At the end of thetrial, petitioner asked the court to find that the destruction of the Blazer was a suppression or destruction of evidence and asked the court to instruct the jury with a modified versionof CALCRIM No. 300, CALCRIM No.306, and CALCRIM No. 371. (2CT 299, 313-316.) However, the requests were denied. (5RT 1009, 1167-1168.) | In the motion for a new trial which was denied, petitioner argued amongotherthings that the premature disposalof the Blazer before the defense could examine it was a denial of his Sixth Amendmentrights to present a defense and Fourteenth Amendment dueprocessrights. (3CT 633-634, 765; 5RT 1244.) By the evening of May 27, 2004, law enforcement knewthat shots were heard beingfired from the park, the pathologist determined the shotentered the side of the victim’s body whichall percipient witnesses had said wasfacing the park at the time of the shooting, and law enforcement discovered two dents on the outside 31 of the car. After these facts cameto light, no one in law enforcement examined the car again to look for potential exculpatory value. (2RT 312, 404, 702.) Thus, the Blazer contained evidence having an apparent exculpatory value. Also, the Blazer was of such a nature that the defense would be unable to obtain comparable evidence by other reasonably available means. Accordingly, pursuantto Trombetta, supra, the destruction of the Blazer infringed upon petitioner’s due process rights even if the police acted in goodfaith, and the motion to dismiss should have been granted. Petitioner also showed that the police acted in bad faith in not preserving the Blazer as evidence. Law enforcementdid not have anyone search the Blazer after May 27, 2004, even though on that date they were aware that shots were heard coming from the park. (3RT 702-703.) It was apparentat that time that the defense would want to examine the Blazer for evidence of the vehicle receiving gunfire. Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence that might be expected to play a significant role in the suspect's defense. (People v. Farnam (2002) 28 Cal.4th 107, 166.) One dayafter the homicide the police knew that the Blazer reasonably might play a significant role in petitioner’s defense, and the police’sfailure to preserve the vehicle for more than five weeks, or at least until the defense had been offered an opportunity to examineit themselves, reflected bad faith on the part of law enforcement. 32 Accordingly, the trial court denied petitioner his federal constitutional right to present a defense under the Sixth Amendment and his right to due process under the Fourth Amendmentof the United States Constitution by denying petitioner’s motion to dismiss and his post-conviction motion for a newtrial dueto the loss of the Blazer as evidence. The destruction of the Blazer was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The absence of the Blazer prevented the defense from showing that the Blazer wasfired upon. Moreover,the trial court compounded the harm by not precluding the prosecution witnesses from claiming that they looked for, but did not find, bullet holes and refusing to instruct the jury on the prosecution’s suppression or destruction of evidence. (1RT 78-79; SRT 1009, 1167-1168.) Accordingly, the court's failure to grant the motions to dismiss and motion for newtrial requires reversal. IV. THE TRIAL COURT PREJUDICIALLY ERRED IN FAILING TO INSTRUCT THE JURY THAT THE EVIDENCE NEEDED TO SUPPORT THE STATEMENT OR TESTIMONYOF ONE ACCOMPLICE CANNOTBE PROVIDEDBY THE STATEMENT OR TESTIMONY OF ANOTHER ACCOMPLICE The court rejected petitioner’s argumentthatthetrial court erred whenit failed to instruct the jury with the bracketed portion of CALCRIM No.335 which states that the testimony of one accomplice cannot corroborate the testimony of another accomplice. (Opinion 16-19.) Petitioner respectfully disagrees. 33 The court notes that there was no objection to the instruction as given or requestthat it be modified. (Opinion 17.) This is correct. However, because the corroboration requirement of Penal Code section 1111 is a substantiveright, errors in jury instructions on this subject are reviewable despite any failure to object to inadequate instruction at trial. (Sec. 1259; People v. Chavez (1985) 39 Cal.3d 823, 830.) Also, in Barajas’s motion for a new trial, defense counsel argued that he did not request the “erroneous version of the instruction or indicate a tactical purposeto useit.” All parties were “given to understand that CALCRIM 335 would begiven - presumably correctly (includingthe vital bracketed paragraph). Nobody knowingly agreed to useof the instruction as it was improperly modified.” (3 CT 684.) Thetrial court has a sua sponte duty to instruct on the principles governing the law of accomplices, including the need for corroboration of their testimony,if there is sufficient evidence that a witness is an accomplice. (People v. Frye (1998) 18 Cal.4th 894, 965- 966, overruled on other groundsin People v. Doolin (2009) 45 Cal.3d 390, 394; People v Zapien (1993) 4 Cal.4t 929, 982-983.) The court did instruct the jury that if the crimes were committed, then Mario Garcia was an accomplice to these crimes. (2CT 430; 4RT 1134.) However, Rodriguez was charged by information andjointly tried with Barajas of the same offenses related to the shooting death of Tina. (1 CT 188-193, 199; 1 SRT 210- 213.) Thus, he was charged as an accomplice. (See People v. Hill (1967) 66 Cal.2d 536, 555.) Nonetheless, the jury was not instructed 34 that Garcia’s testimony could not be corroborated by Rodriquezif he was guilty of the same offenses. However, since both Garcia and Rodriguez were accomplices, neither could corroborate the testimonyof the other. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1132.) A conviction will not be reversed for failure to instruct on the principles of the law of accomplices if a review of the entire record reveals sufficient evidence of corroboration in the form of independentevidence connecting the defendantto the crime. (People v. Frye, supra, at pp. 965-966; People v. Zapien, supra, at pp. 982-983.) However, as explained in Section I above, there is not sufficient evidence of corroboration in the form of independent evidence tending to connect Barajas to the crimes. Accordingly, the error hereis reversible. V. PETITIONER WASDENIED HIS RIGHT TO DUE PROCESS GUARANTEEDBY THE FIFTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION BECAUSE THE TRIAL COURT ERRONEOUSLY FAILED TO INSTRUCT THE JURY THATCALCRIM NO.370, WHICH STATES THAT PROOF OF “MOTIVE” IS NOT REQUIRED, DID NOT APPLY TO THE GANG ENHANCEMENTS ALLEGED The Court of Appealrejected petitioner’s argument that the trial court erred by giving CALCRIM No.370, which states the People need not prove a motive, without specifying that it did not apply to the alleged section 186.22, subdivision (b)(1) gang 4 Petitioner incorporates those discussions into this argument as thoughfully set forth. (Cal. Rules of Court, rule 8.200(a)(5). 35 enhancements. (Opinion 19.) The Court of Appeal previously denied this instructional challenge in People v. Fuentes (2009) 171 Cal.App.4th 1133, but it declined to reconsiderit. (Opinion 19.) Petitioner respectfully submits that Fuentes was wrongly decided. Motive is an elementof the alleged gang enhancements, and the jury wasso instructed pursuant to CALCRIM No.1401. (Sec. 186.22, subd.(b)(1); 2CT 387-388.) The enhancements required a finding that the crimes were “committedfor the benefit of, at the direction of, or in association with any criminalstreet gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (Sec. 186.22, subd.(b)(1) [emphasis added].) Thus, there are both specific intent and motive elements to the enhancements. The motiveis that the conduct was done “for the benefit of” the gang.(Ibid.) It is unfair to admit gang evidence, instruct the jury that for the gang enhancementit must find the defendant was motivated by a desire to benefit his gang, and also instruct the jury that the People need not prove a motive existed. Thus, as given CALCRIM No.370 unconstitutionally lessened the prosecution's burden of proof on the alleged gang enhancements, implicating petitioner’s rights to due process guaranteedby the Fifth and Fourteenth Amendmentsof the United States Constitution. (U.S. Const., Amends. V & XIV.) 36 VI. THE COURT OF APPEAL ERRED IN IGNORING RODRIGUEZ’S INVESTIGATOR’S DECLARATIONFILED IN SUPPORT OF PETITIONER’S MOTION FOR A NEW TRIAL AND THE MOTION WAS IMPROPERLY DENIED BY THE TRIAL COURT, THEREBY DENYING PETITIONER HIS RIGHTS TO A FAIR TRIAL, IMPARTIAL JURY, AND DUE PROCESS GUARANTEED BY THEFIFTH, SIXTH, AND FOURTEENTH AMENDMENTSOF THE UNITED STATES CONSTITUTION; THE DECLARATION SHOWS THAT SEVERAL JURORS COMMITTED MISCONDUCT AND CAUSED OTHER JURORS TO COMMIT MISCONDUCT DURING DELIBERATIONSON A CRITICAL ISSUE The Court of Appealrejected petitioner’s argumentthat the trial court erred in denying his motion for a new trial because the jurors engaged in misconduct while deliberating by introducing outside evidence that wasreceived byall the jurors. (Opinion 22-24.) Petitioner respectfully disagrees. The Court of Appeal concluded that the motion for a newtrial was not supported by competent evidence because the declaration of Mari Cicinatato, defense investigator, contained inadmissible hearsay. (Opinion 21, 23.) The defenseat trial was that shots were fired from the park toward the Blazer and shots were returnedin self-defense. (2ART (24) 226-229.) During thePeople’s case-in-chief, witnesses denied hearing any shots fired from the park. To refute this, the defense called U.S. Army Lieutenant Nicholas Garber, an expert on shooting 37 incidents. (4RT 845, 848-849.) He testified about how gunshots echo off hard surfaces and confuse people aboutthe direction from where the gunfire was coming and opined that shots coming from inside the park could be mistaken for shots coming from a vehicle in the road. (4RT 851, 855.) This critical aspect of petitioner’s self-defense claim, was undermined by jurors during deliberations describing their personal experiences with firearms to convince fellow jurors that Garber’s testimony was untrue. The evidence of this conduct was supported by the declaration of Mari Cicinato. In the declaration Cicinato stated that after the verdicts trial jurors told Cicinato about the statement madeby jurors about their experiences with firearms. (3CT 607-609.) Whatthe jurors told the investigator was not simply hearsay. These statements also were includedin the declaration for the non- hearsay purpose of showingthe effect they had on deliberations aboutthe distortion of the direction of gunfire presented by the expert and on the jurors who spoketo the investigator. (Evid. Code, sec. 1250, subd.(a)(1), (2).) The Sixth Amendmentguarantee of an impartial jury encompassesa verdict not tainted by extraneousinfluences. (U.S. Const., Amend. VI; People v. Oliver (1987) 196 Cal.App.3d 423, 428.) This did not occurhere. The jurors referring to themselves as sources of expert information was misconduct. (People v. Williams (1988) 44 Cal.3d 1127, 1156; Pen. Code, sec. 1181 (a). By serving as unswornrebuttal 38 expert witnesses on the acoustics of gunfire, three jurors committed misconduct by introducing out of court “evidence.” Also,all of the other jurors committed misconduct by receiving the information and notdisclosing it to the court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1178-1179.) This out of court “evidence” considered by the jurors posed the risk that one or more of the jurors may have beeninfluenced by material petitioner had not had the opportunity to cross-examine or rebut, thereby giving rise to a presumption of prejudice.(People v. Danks (2004) 32 Cal.4th 269, 307; People v. Nesler (1997) 16 Cal.4th 561, 579.) CONCLUSION For the reasonsdiscussed above,petitioner respectfully requests that review be granted. Dated: January 23, 2017 Respectfully submitted, S. Lynne Klein Attorney for Petitioner Edgar Octavio Barajas 39 CERTIFICATE OF LENGTH I, S. Lynne Klein , counsel for Edgar Octavio Barajas, certify pursuant to the California Rules of Court, that according to word count feature of the Word 2010 wordprocessing program used to prepare this petition, excluding the tables and appendix,this documentcontains 8, 295 words. I declare underpenalty of perjury under the lawsof the State of California that the foregoing is true and correct. Executed, at Davis, California, on January 23, 2017. Aipte S. Lynne Klein 40 APPENDIX A Filed 12/20/16 P. v. Rodriguez CA5 Opinion on remand from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions notcertified forpublication or ordered published, except as specifiedby rule 8.1115(b). This opinion has not beencertified for publication or ordered published for purposesof rule 8.1115. IN THE COURTOF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F065807 Plaintiff and Respondent, (Super. Ct. No. 1085319) v. JESUS MANUEL RODRIGUEZ, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, (Super. Ct. No. 1085636) V. EDGAR OCTAVIO BARAJAS, OPINION Defendant and Appellant. APPEALfrom a judgmentofthe Superior Court of Stanislaus County. Nancy Ashley, Judge. Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Manuel Rodriguez. S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Octavio Barajas. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, MichaelP. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent. -00000- A jury convicted Jesus Manuel Rodriguez and Edgar Octavio Barajas (collectively, defendants) of willful, deliberate, and premeditated murder, conspiracy to commit murder, and active participation in a criminal street gang. A firearm enhancementalso was found true. Both were juveniles at the time they committed the murder. In this case, defendants challenged their convictions on the grounds the People failed to preserve exculpatory evidence, juror misconduct, insufficient corroboration of accomplice testimony, and instructional error. They also contended their sentences of 50 years to life violate the Eighth Amendment to the United States Constitution. We rejected all of their contentions andaffirmed the judgments. Defendants appealed to the California Supreme Court and, on remand, this court wasdirected to vacate its decision and reconsiderthe case in light of People v. Franklin (2016) 63 Cal.4th 261 as to both defendants and People v. Romero and Self(2015) 62 Cal.4th 1 (Romero andSelf) as to Barajas. Once again, we affirm. FACTUAL AND PROCEDURAL SUMMARY Prosecution Evidence In May 2004,! Oregon Park in Modesto was a known Nortefio gang hangout. Gina Lopez, a Police Activities League (PAL) employee, operated an after-school recreational program at Oregon Park for children between the ages of three and 18 years. Lopez usually set up her program under a gazebo. Lopez was familiar with the people who frequented the park, including Nortefio gang members. The Nortefios had never caused a problem for Lopez or the PAL program. Lopez had neverseen any fights or other problemsat the park caused by Nortefio gang members. Also in May, 17-year-old Surefio gang member Mario G.lived in Modesto. Rodriguez, then 15 years old, Barajas, then 16 years old, and 16- or 17-year-old Louis A. were fellow Surefio gang members. Mario and Louis lived near Oregon Park. Whenever the Nortefios saw Mario or other Surefios hanging around, they wouldcall them names and throw gangsigns. On May20 Louis wasassaulted by Nortefios in Oregon Park. The Nortefios broke the windowsof his van andfired a small handgun at him; Louis ran home. Asa result of the assault, Louis’s arm was broken. On May 25 Rodriguez wasdriving to Louis’s house whenherealized he was being followed by Nortefios. When he pulled up at Louis’s house, the Nortefios used a baseball bat to break the windowsof his white Chevy Blazer. Mario was with Rodriguez whenthis happened. On May 26 Mario, Barajas, and Rodriguez used Rodriguez’s Chevy Blazer to drive to a location to pick up a firearm. Barajas got out of the vehicle and returned carrying a .22-caliber Savagerifle. On the ride home,the three young mendiscussed the Nortefios and exacting revenge. 1 All further references to dates are to the year 2004 unless otherwise noted. The three stopped at Mario’s housefor a short time, at which point fellow Surejios Pedro C. and Rigoberto M. joined them in the Chevy Blazer. Rodriguez wasdriving, Pedro wasin the front passenger seat and was wearing a blue bandannaoverhisface, Mario was in the backseat behind Pedro, Rigoberto wasin the backseat behind Rodriguez, and Barajas wasin the rear cargo area holding the .22-caliber rifle. Mario understood they were going to drive to Oregon Park to look for Nortefios. Atthat time Lopez had about 80 children in her afternoon PAL program. The children were mostly in the area around the gazebo; older children began showing up around 4:00 p.m. The older children included Nadia O., Charlene S., and Delphina A. There were a couple of boys with Delphina on a benchnear the gazebo. Around 5:00 p.m. Lopez was under the gazebo talking with Ermnestina Tizoc (hereafter Tina or the victim). Lopez did not consider Tina to be a Nortefio. Around 5:30 p.m. Lopez and Nadia noticed a white Chevy Blazer with broken out windowspass by the gazebo area once and drive slowly around the park. As it passed by the gazebo area the second time, someoneshouted “Puro Sur,” which is Spanish for “Pure South.” Nadia saw the occupants of the Chevy Blazer throwing gang signs, specifically, a “13” hand sign, and noticed one occupant with a bandannaoverhis face. Charlene also heard shouting from the Chevy Blazer and noticed one passenger with a bandannaoverhis face. Charlene saw a black object being lifted up through a broken window of the Chevy Blazer. Lopez, Nadia, and Charlene then heard multiple gunshots coming from the Chevy Blazer. Lopez heard Tina scream. Charlene heard Tina yell, “it hit me,it hit me.” Nadia heard Tina scream and then someoneyell, “They shot Tina, they shot Tina.” After the shots were fired, the Chevy Blazer drove off. Lopez called 911. None of the witnesses heard any gunshots being fired from the park. Tina died from her injuries. Mario, who wasin the Chevy Blazer,testified that he, Rodriguez, Barajas, Rigoberto, and Pedro passed through Oregon Park looking for Nortefios. Mario thought some people by the gazebo were Nortefios because they were wearing red. As the Chevy Blazer approached the gazebo, Barajas shouted “puro Sur” and fired multiple shots. When Barajas stopped shooting, the Chevy Blazer sped away. Sheriff's Deputy Vincent Hooperarrived at the scene and received information that people at a residence on Thrasher Avenue were involved in the shooting. Hooper and other deputies responded to the address and detained the people located at that residence. Around 7:30 p.m. Hooper wasdispatched to an alley, where he foundthe white Chevy Blazer. Hooper arranged for the Chevy Blazer to be towed to impoundfor processing. In a subsequent search of the Thrasher Avenueresidence, Sheriff's Deputy Edgar Campbell found mail addressed to Louis, gang-related drawings, and two .22- caliber bullets. On May 27 Rodriguez led Campbell to a location where the .22-caliberrifle was located. Discussions with Rodriguez also led Campbell to .22-caliber casings and .22- caliber bullets at two residences. Campbell inspected the Chevy Blazer that had been impounded;he did not notice any signs that the vehicle had sustained any damage from gunfire. Sheriff's Detective Mark Copelandfirst saw the Chevy Blazer the day it was impounded. The next day, May 27, the Chevy Blazer was inspected by Campbell, Crime Scene Officer Brook Mercer, and California Department of Justice Criminalist Duane Lovass. Copeland did not see any bullet holes or evidence that the Chevy Blazer had received gunfire. Lovass also inspected the vehicle and saw no evidence it had sustained gunfire. Copeland was not aware of any exculpatory evidence found in or on the Chevy Blazer. | On July 2 the Chevy Blazer was removed from impoundand towedto a private towing company’s yard. Copelandtestified someone of higher authority made the decision to move the Chevy Blazer and about eight other vehicles from impound. Copeland indicated the sheriff's department wasfinished with the Chevy Blazer because there was no evidence taken from it. Rodriguez’s family was notified it had been taken to the towing companyyard. Rodriguez and Barajas were charged with willful, deliberate, and premeditated murder, conspiracy to commit murder, and active participation in a criminalstreet gang. The information also alleged, as to the murder and conspiracy counts,that at least one principal intentionally and personally used a firearm, causing great bodily injury or death. It also was alleged that the offenses were committed for the benefit of a criminalstreet gang. Forensic Pathologist Sung-OokBaik testified as an expert on the causeofthe victim’s death. Hetestified that the cause of death was a gunshot woundto the chest and that the victim died within 20 minutes of being shot. Lovasstest fired the .22-caliberrifle and compared the expendedcartridge to the three shell casings and the bullet recovered from the victim’s body. Lovasstestified the three shell casings definitely came from the rifle he tested; he stated the bullet recovered from the victim’s body could have comefrom thetested rifle, but he could not determine - this with certainty. Gang expert Froilan Mariscal believed Barajas, Rodriguez, Pedro, and Rigoberto were Surefio gang memberson the day of the shooting. Based upon a hypotheticalfact pattern similar to the facts of the case, Mariscal opined the drive-by shooting by Surefios would have been intended for the benefit of the gang. Defense Evidence United States ArmyFirst Lieutenant Nicholas Garbertestified for the defense as an expert on shooting incidents. Garbertestified that based upon his combat experience, a person could be shot at and not know the true direction from whichthe shot wasfired. Garber further opined that the gazebo could distort sound, which would makeit more difficult to determine the origin of gunshots. Brothers Nicholas Jones and Jason Jones were in Oregon Park the dayofthe shooting. Both testified they heard gunshots coming from the park as well as the street. Anthony Q.also testified he heard gunshots coming from the park that day. Rebuttal Evidence Copelandtestified he interviewed the Jones brothers after the shooting. Neither brother mentioned ever hearing gunshots being fired from the park. Verdict and Sentence The jury convicted Rodriguez and Barajas of all counts and foundall allegations true. On September 12, 2012,the trial court sentenced both Rodriguez and Barajas to terms of 50 years to life and credited them with 3,022 days for time served. In this case, defendants challenged their convictions on the grounds the People failed to preserve exculpatory evidence, juror misconduct, insufficient corroboration of accomplice testimony, and instructional error. They also contended their sentences of 50 years to life violate the Eighth Amendmentto the United States Constitution. We rejected all their contentions and affirmed the judgments. Defendants appealed to the California Supreme Court and on remand,this court wasdirected to vacate its decision and reconsiderthe case in light of People v. Franklin, supra, 63 Cal.4th 261 as to both defendants and Romero andSelf, supra, 62 Cal.4th 1 as to Barajas. Neither defendant submitted a brief after remand. DISCUSSION Rodriguez and Barajas contend the People actedin bad faith by failing to preserve exculpatory evidence, specifically, the Chevy Blazer. They further claim there was juror misconduct and thetrial court abusedits discretion in denying their request for juror identifying information and in denying their motion for newtrial. Barajas argues there wasinsufficient evidence independent of accomplice testimony to sustain his convictions. They both contendit was errorto instruct the jury with CALCRIM No.370anderrorto fail to instruct the jury that the testimony of one accomplicecannot corroborate the testimony of another accomplice. Finally, they assert that imposing a sentence of 50 years to life is a violation of the Eighth Amendmentbecauseit is the functional equivalent of a life sentence and disproportionate to the crimes. I. Preservation of Evidence Rodriguez and Barajas both claim thetrial court erred and infringed on their constitutional due process rights when it denied their motion for dismissal and motion for new trial, which were based uponthe claim the People willfully failed to preserve exculpatory evidence. In a related argument, defendants contendthetrial court erred whenit failed to instruct the jury with modified versions of CALCRIM Nos.300 (willful suppression ofall available evidenceis a denialof a fair trial), 306 (untimely disclosure of evidence), and 371 (suppression of evidence). Factual Summary Rodriguez’s Chevy Blazer was impoundedby law enforcement on May 26. Copeland first saw the Chevy Blazer on that date. Copeland, Mercer, and Lovassall inspected the vehicle on May 27. Copeland did not see any bullet holes in the Chevy Blazer and wasnot aware of any exculpatory evidence found in or on the Chevy Blazer. Lovassalso inspected the vehicle and found no evidence of any bullet holes in the Chevy Blazer. The Chevy Blazer was removed from the sheriff's department’s impound yard on July 2 when it was towed to a yard operated by a private company. Copelandtestified that someone of higher authority than he decided to have the Chevy Blazer and about eight other vehicles removed from the sheriff's department’s impound yard. According to Copeland, at the time the Chevy Blazer was towed from the impoundyard, the sheriff's department had finished its inspection of the Chevy Blazer, no evidence was found in the Chevy Blazer, and the Rodriguez family was notified that the Chevy Blazer had been released to the private towing company. Copeland did not notify the defense attorneys in the case that the Chevy Blazer was being towedandreleased to a private company. He, however, did speak with the deputy district attorney handling the criminal case and wastold that as long as no evidence was found in the Chevy Blazer, the car could be released. After examining the Chevy Blazer, neither the sheriff's department nor the Department of Justice found any evidencein the car. Rodriguez also filed a motion for a new trial on January 9, 2012, contending that the prosecutor had committed misconduct by failing to assure the Chevy Blazer was available for inspection by the defense. Analysis The United States Supreme Court has held law enforcement agencies have a duty under the due process clause of the Fourteenth Amendmentto preserve evidence “that might be expected to play a significant role in the suspect’s defense.” (California v. Trombetta (1984) 467 U.S. 479, 488; accord, People v. Beeler (1995) 9 Cal.4th 953, 976 (Beeler).) To fall within the scope ofthis duty, the evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Trombetta, supra, at p. 489; Beeler, supra, at p. 976.) The state’s responsibility is further limited when the defendant’s challengeis to “the failure of the State to preserve evidentiary material of which no more can besaid than that it could have been subjected to tests, the results of which might have exonerated the defendant.” (Arizona v. Youngblood (1988) 488 U.S. 51, 57 (Youngblood).) In such cases, “unless a criminal defendant can show badfaith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” (Ud. at p. 58; accord, Beeler, supra, 9 Cal.4th at p. 976.) In California courts, the Trombetta and Youngblood standardsare applied in tandem. If evidence has an exculpatory value that is apparent before the evidenceis destroyed, the 7rombetta approach applies and the state has a duty to preserveit. But “Tt]he state’s responsibility is [more] limited when”the evidence is merely potentially useful. (Beeler, supra, 9 Cal.4th at p. 976.) In that case, the state breachesits duty only if it acts in bad faith. (/bid.) If a defendant demonstrates that significant exculpatory evidence waslost or establishes bad faith in connection with the loss of potentially useful evidence, then the trial court has discretion to impose appropriate sanctions. (People v. Medina (1990) 51 Cal.3d-870, 894.) Negligent destruction or failure to preserve potentially exculpatory evidence, without evidence of bad faith, will not give rise to a due processviolation. (Youngblood, supra, 488 U.S. at p. 58.) A finding as to “whether evidence was destroyed in goodfaith or bad faith is essentially factual: therefore, the proper standard of review is substantial evidence.” (People v. Memro (1995) 11 Cal.4th 786, 831.) On review,this court must determine whether, viewing the evidence in the light most favorableto the trial court’s finding, there was substantial evidence to support its ruling. (People v. Carter (2005) 36 Cal.4th 1215, 1246 (Carter).) Here, substantial evidence supported the trial court’s finding that the failure to maintain possession of the Chevy Blazer was notin bad faith and therefore not a constitutional due process violation. There was no evidence further examination ofthe Chevy Blazer would have disclosed exculpatory evidence or that the sheriff's department knew of any potential exculpatory value to the Chevy Blazer. Therecord discloses that no fewer than three law enforcementofficials inspected the Chevy Blazer, and no bullet holes were found in the vehicle. At the time the Chevy Blazer was released, no witness had indicated that any gunshots were fired from the park. Any claim by defendants that the Chevy Blazer had bullet holes that were missed by three law enforcementprofessionals is purely speculative. The mere possibility that 10. evidence may ultimately prove exculpatory is not enoughto trigger a duty to preserve the evidence. (City ofLos Angeles v. Superior Court (2002) 29 Cal.4th 1, 8.) There is no indication the release of the Chevy Blazer was an attempt to deprive defendants of potentially exculpatory evidence and thus no evidence of bad faith or any due processviolation. Wealso reject the related contention that the trial court erred whenit failed to instruct the jury with modified versions of CALCRIM Nos. 300, 306, and 371. When,as here, there is no Trombetta/Youngbloodviolation,the trial court is not required to impose any sanction, including jury instructions. (People v. Cooper (1991) 53 Cal.3d 771, 811.) It is not error to fail to give a cautionary instruction whenthere is no 7rombetta violation. (People v. Huston (1989) 210 Cal.App.3d 192, 215.) I. Accomplice Testimony Barajas contends his convictions must be reversed in their entirety because the only evidence connecting him to the crimes wasthe testimony of an accomplice. He is mistaken. Factual Summary Mario, who wasin the Chevy Blazer and was an accomplice to the crimes, testified for the prosecution. Mario stated that his Surefio “home boys” were Rodriguez, Barajas, and Louis. Hetestified that on May 25, the day before the shooting,rival Nortefios smashed the windowsof Rodriguez’s Chevy Blazer whenit was outside Louis’s house at 429 Thrasher, near Oregon Park. Mario and other Surefios, including Rodriguez and Barajas, talked about shooting at Nortefios as payback for smashing the windowsofthe Chevy Blazer. Mariotestified that on the day of the shooting he, Rodriguez, and Barajas, drove in the white Chevy Blazer to a location in Modesto and picked up a firearm. Whenthe three arrived at the location, Barajas got out of the vehicle and returned with a .22 rifle. On the ride back, the three discussed getting revenge on Nortefios. They made a stop and picked 11. up fellow gang members Rigoberto and Pedro. Rodriguez was driving; Pedro wasin the front passenger seat with a blue bandanna overhis face; Mario wasin the back seat by a broken window; Barajas was in the back holding the .22 rifle. Mario understood they were going to drive by Oregon Park looking for Nortefios. Mario saw some people standing by the gazebo wearing red. As the Chevy Blazer approached the gazebo, Barajas, who wasin the rear cargo area of the Chevy Blazer, shouted “puro sur” and fired multiple gunshots in the direction of the people by the gazebo. After Barajas finished shooting, the Chevy Blazer sped away. Mariotestified that Barajas used a .22-caliber rifle in the shooting. Mario did not recall any gunshots being fired toward the Chevy Blazer. Lopez and Nadiatestified they saw a white vehicle with broken windowsdrive slowly around the park. As it passed by, they heard someonein the vehicle shout “Puro Sur.” Nadia saw that the front passenger had a dark bandannaoverhis face and saw occupants throwing “13” handsigns. Charlene also heard shouting from the vehicle and saw the passenger with a dark bandannacovering his face. Charlene saw “something going up” and saw “the gun lifting” through a broken back window of the Chevy Blazer. Charlene heard multiple shots, possibly ten shots fired. Lopez and Nadia also heard multiple gunshots come from the Chevy Blazer. Nadia noticed the Blazer had “actually stopped” and the occupant of the Blazer was “shooting at us.” Nadia was “pretty sure” the shots were being fired from the backseat area; the shots were not coming from thedriver.” 2 Barajas made multiple incriminating admissionsafter his arrest, including acknowledging he was the shooter. Thetrial court instructed the jury to disregard the evidenceofthese admissions. Deputy Campbell testified that after contacting Barajas, he was “directed to an old tire that had a bag of some bullets underneath it.” Barajas led them to the bullets. Barajas led officers to the alley where he and the other gang membershad goneafter the shooting; after searching the area, .22-caliber shell casings were found. Deputy Campbell showed Barajas the 12. Deputy Hooperarrived at the scene and received information that people at 429 Thrasher, directly across the street from the park, were involved in the shooting. The address was where Louis A., a Surefio, lived. It was outside this residencethat Rodriguez’s Chevy Blazer had been attacked by Nortefios. In a subsequent search ofthe Thrasher Avenue residence, two .22-caliber bullets were found. A short while later, Hooper received a dispatch call that the suspect vehicle was seen in an alley. Hooper was dispatchedto the alley where he found the Chevy Blazer. Rodriguez led officers to the .22-caliber rifle and shell casings. Lovasstest fired the .22-caliber rifle and compared the expendedcartridge to the three shell casings and the bullet recovered from the victim’s body. Lovasstestified the three shell casings definitely came from therifle he tested; he stated the bullet recovered from the victim’s body could have come from the tested rifle, but he could not determine this with certainty. Gang expert Froilan Mariscal believed Barajas, Rodriguez, Pedro, and Rigoberto were Surefio gang membersonthe day of the shooting. Based upon a hypothetical fact pattern similar to the facts of the case, Mariscal opined the drive-by shooting by Surefios would have been intended for the benefit of the gang. Analysis “A conviction cannot be had upon the testimony of an accomplice unlessit be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.” (Pen. Code, § 1111.)3 Adequate corroboration of an accomplice’s testimony neednotin itself be sufficient to convict the defendant; it may be slight and entitled to little consideration when standing alone. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128 (Rodrigues); People v. Douglas (1990) 50 Cal.3d 468, 507 .22-caliberrifle and asked Barajas “if it was the rifle that he used during the shooting.” Barajas “stated that it was, and hestarted to cry.” 3 All further statutory references are to the Penal Code unless otherwise noted. 13, (Douglas).) It need only “tend[] to connect the defendant with the crime so that the jury may besatisfied that the accompliceis telling the truth.” (Douglas, supra, at p. 506.) The corroborating evidence may be circumstantial and may consist of a defendant’s conductor statements. (/d. at p. 507.) It thus may be evidence that shows a consciousness of guilt. (People v. Hurd (1970) 5 Cal.App.3d 865, 875.) Asthe California Supreme Court held in Romero andSelf, “for the jury to rely on an accomplice’s testimony about the circumstances of an offense, it must find evidence that “without aid from the accomplice’s testimony, tend[s] to connect the defendant with the crime.”’” (Romero andSelf, supra, 62 Cal.4th at p. 32.) “‘The entire conduct of the parties, their relationship, acts, and conduct maybe taken into consideration bythetrier of fact in determining the sufficiency of the corroboration.’” (/bid.) The evidence need not “corroborate every fact to which the accomplicetestifies” and it may be “circumstantial or slight.”’” (Ubid.) “